#### BUCKHORN LAND AND TIMBER COMPANY v. J. A. YARBROUGH.

(Filed 24 March, 1920.)

1. Deeds and Conveyances — Description—Identification of Lands — Parol Evidence — Statutes.

A description of land in a deed, all that tract of land in two certain counties, lying on “both sides of old road between” designated points, and bounded by lands of named owners, “and others,” being parts of certain State grants, conveyed by the patentee or enterer to certain grantees, etc., is sufficient to admit of parol evidence in aid of the identification of the lands as those intended to be conveyed. Revisal, secs. 948 and 1605.

2. Boundaries— Evidence— Hearsay— Declarations — Deceased Persons— Surveyors — Interest.'

Under the rule admitting declarations of deceased persons as evidence of boundaries, the person making them must have been disinterested at the time, they must have been made ante litem motam, and by a person since deceased; and a paper writing or memoranda made by a surveyor, since deceased, as to boundaries pointed out by a deceased owner in favor of his own title, are doubly incompetent, as hearsay, and as coming from an interested person, and their admission is reversible error.

S. Landlord and Tenant — Possession—Adverse Title — Surrendering Possession — Assigning Tenant — Estoppel.

One who has entered into possession of lands as lessee of and under the title of another, and who retains the possession thus acquired, cannot resist an action by the lessor for its recovery brought after the termination of the lease, by showing a superior title in another, or in himself, acquired either before or after the contract of lease, and this element of estoppel applies to any one to whom the tenant has assigned, and who has entered into possession under him.

Civil actiok, tried before Connor, J., and a jury, at July Term, 1919, of Chatham.

This action was brought to recover the possession of land. The plaintiff, in its complaint, alleged title in itself to a large tract of land, which the plaintiff estimated to contain something like 10,000 acres. The defendant disclaimed any interest in the land except two tracts, one containing 110 acres, and one 1% acres, in which he asserts ownership in himself, and denied the plaintiff’s title. Upon coming to trial the plaintiff, with leave of the court, amended its complaint, limiting the controversy to the two tracts of 110 acres and 7% acres, to which the defendant had asserted claim of title, and upon the amended pleadings as set- forth in the record the case was tried. The defendant assigned three errors (among others not deemed necessary to be now considered), as follows: The admission, over his objection, of a deed from Neill McKay and John ~W. McKay to the Deep River Manufacturing Company, and other *336deeds connecting him therewith, the ground of objection being that the description of the land in the deeds was too vague and uncertain for it to be identified. It will be necessary to give only the description in the first named deed, as the others refer to it, which is as follows:

“All that tract of land situated, lying, and being in the counties of Harnett and Moore, lying on both sides old road between Summerville and Neill McNeill’s land in Moore County, bounded by the lands of Neill McNeill, Esq., lands belonging to the estate of Murdock McLeod, deceased, Jas. S. Harrington, Neil McLean, Jr., the Bethea lands, Jas. M. Turner, and the lands of the estate of Noah Buchanan and others, including a part of a five thousand-acre survey and a three thousand-acre survey patented by John Gray Blount and conveyed by ¥m. B. Rodman and others to Neill McKay and John W. McKay, also six hundred and forty acres patented by the said John W. McKay, also a piece patented by Jas. S. Harrington and John Harrington and Neill McNeill and Hector McNeill and others, and by them conveyed to the said Neill McKay and John W. McKay, containing by estimation ten thousand acres.” The second error assigned is the admission in evidence of a written lease of the lands for the purpose of working the trees thereon for turpentine, and for this purpose only, introduced for the purpose of estopping the defendant, who claimed under said lease, to deny the plaintiff’s title. The third error assigned is to the admission of a paper-writing, signed by D. G. McDuffie, civil engineer, dated 24 September, 1888, for the purpose of locating the lands described in the McKay deed aforesaid, the said paper-writing being in the following words and figures:

“This is to certify that 14 November, 1868, Rev. Neill McKay and Dr. J. W. McKay and wife sold to the Deep River Manufacturing Company 10,000 acres of land in Harnett County and Moore County as follows: 5,000 acres and 3,000 acres known as the Blount Speculation land, and 2,000 acres composed of 640 acres granted to Dr. J. W. McKay and the pieces which the McKays had bought from Neill McNeill, Hector McNeill, Jas. S. Harrington, and John Harrington, joining Neill McNeill, McLeod, Neill McLean, Jr., Bethea, J. M. Turner, and Noah Buchanan.

“I further certify that I was selected by both parties to make an actual survey of said lands, and that the Rev. Neill McKay went with me and showed me where the boundaries were, and that after making the survey I handed the plat and courses and distances to Col. J. M. Heck, and I certify that the following are the courses and distances (then follows description by metes and bounds).”

There are other exceptions and assignments of error, but, in the view taken of the case by the court they need not be set out here.

*337Defendant moved for a nonsuit,-which was denied, and be excepted.

Tbe jury returned tbe following verdict.

“1. Was E. J. Tarbrougb, at tbe'time sbe executed tbe deed to J. A. Yarbrough for tbe 110-acre tract described in tbe amended complaint, tbe tenant of tbe plaintiff’s predecessor in title? Answer: ‘Yes.’

“2. Is tbe plaintiff tbe owner and entitled to tbe possession of tbe lands described in tbe amended complaint? Answer: ‘Yes.’

“3. What is tbe annual rental value of plaintiff’s lands in tbe possession of tbe defendant ? Answer: ‘$80.’ ”

Judgment on tbe verdict, and defendant appealed.

Seawell & Millihen and Hoyle & Hoyle for plaintiff.

Baggett & Baggett, H. E. Norris, A. G. Bay, W. P. Horton, and Chas. Ross for defendant.

Walker, J.,

after stating tbe case as above: Tbe description in tbe deed of Neill McKay and John W. McKay to tbe Deep River Manufacturing Company is sufficiently certain to let in parol evidence for tbe purpose of identifying tbe land. _ 'Since tbe decision of this Court in Patton v. Sluder, 167 N. C., 500, there cán be no doubt of tbe correctness of tbe proposition just stated,- that tbe description of tbe land is not too vague to be aided by parol proof so as to fit it to tbe land intended to be conveyed. Tbe descriptive words in tbe Patton case were: “On tbe headwaters of Swannanoa River, adjoining Hemphill and Gilliam heirs and others.” Prior to tbe decisions in Blow v. Vaughn, 105 N. C., 198, and Wilson v. Johnson, ibid., 211, such descriptions as that appearing in tbe McKay deed were beld’no't to be too vague and indefinite to be aided by parol proof. Those two cases varied tbe rule somewhat, but were disapproved in Perry v. Scott, 109 N. C., 374. Tbe following was tbe description construed in tbe -last case: “Lying and being in tbe county of Jones and bounded as'follows, to wit: On tbe south side of Trent River, adjoining tbe lands of Colgrove, McDaniel, and others, containing three hundred and sixty acres, more or less.” This was held to be sufficiently certain to be located by parol proof.

It is true we have held that a deed conveying real estate or a contract concerning it, within tbe meaning of tbe statute of frauds, must contain a description of tbe land, tbe subject-matter of tbe contract, “either certain in itself or capable of being reduced to certainty by reference to .something extrinsic to which tbe contract refers.” Massey v. Belisle, 24 N. C., 170. But tbe principle is satisfied by tbe descriptive words of this deed. Tbe evidence proposed to be offered to identify tbe land must of course have that tendency, but we are not discussing the question *338whether the description is sufficient in any given case, but the general one what description is, in itself, sufficiently certain to be perfected by parol testimony.

In our case we think the description is sufficient to let in parol evidence. The Revisal of 1905, secs. 948 and 1605, declares in explicit language that this shall be the law. The matter is so fully discussed in Perry v. Scott, supra, and in Patton v. Sluder, 167 N. C., 500, that further comment would be useless. While we hold that the deed is valid, there was some evidence admitted to identify the land, which we deem to be incompetent. We refer to the notes of the surveyor, D. G. Mc-Duffie, made in September, 1888, and which are fully set forth in our statement of the case. The paper is in the handwriting of McDuffie, who is dead, and it was written by him before this controversy arose, and this action was brought, and, at the time of writing these notes, McDuffie had no interest in the land, or the subject-matter of the notes, except that he had been employed by the McKays and the Deep River Manufacturing Company to make the survey for them, but the fact remains that the surveyor McDuffie derived his knowledge of the lines and corners, upon which he based his survey, from Parson Neill McKay, and this fact appears in the notes offered in evidence by the plaintiff, for he says in the notes: “I further certify that I was selected by both parties to make an actual survey of said lands, and that the Rev. Neill McKay went with me and showed me where the boundaries were, and that after making the survey I handed the plat and courses and distances to Col. J. M. Heck, and I certify that the following are the courses and distances.” It is true that in questions of boundary, hearsay is competent as evidence. But it must come from a disinterested source. The conditions under which it is received are: (1) the declaration must come from a disinterested person; (2) it must have been made ante litem motam; and (3) the person who made it must be deceased, so that he cannot he produced and heard in person as a witness. Smith v. Headrick, 93 N. C., 210; Yow v. Hamilton, 136 N. C., 357, and cases cited. It was said by Smith, C. J., in Whitehurst v. Pettipher, 87 N. C., 179 : “The declaration is received under the conditions mentioned as evidence, instead of the sworn statement for which it is substituted, when the party making it is dead and the evidence would otherwise be lost. ■ It is manifest that if the declarant were alive, and would be allowed to prove the fact to which the declaration relates, the declaration itself may be proved after his death.” In this case, if McDuffie were living, he would not be permitted, as a witness, to testify as to what Dr. McKay told him about the boundaries, because it would, of course, be hearsay, and Dr. McKay was at the time he showed him the boundaries of the land an interested person, being the owner of the land, or one of its owners. The primary *339declaration would not bave come from a disinterested source. Tbe notes of McDuffie were written twenty years after tbe actual survey was made by bim, and were based, it appears, entirely upon tbe declaration of an interested person. Tbey constituted tbe declaration, not tbe sworn testimony, of McDuffie, as to wbat another man bad declared, and tbe latter interested in tbe land, tbe boundaries of wbicb are in question. It is tbe declaration of tbe person wbo knows tbe boundaries tbat is required to satisfy tbe rule of admission, and tbat is, in tbis case, tbe declaration of Dr. McKay. It is excluded because of bis interest in tbe land, and bis making a declaration favorable to bimself. Tbe declarant must be dead, because if alive be must be produced as a witness, and be must be disinterested, and tbe declaration must be made ante litem motam to avoid bias or to free it from suspicion, and to remove all temptation to falsify. Dobson v. Finley, 53 N. C., 495; Shaffer v. Gaynor, 117 N. C., 15; Westfelt v. Adams, 131 N. C., 379. It is admitted from necessity, because it is tbe best and only evidence of tbe fact obtainable. Mr. McDuffie was only writing into bis notes substantially something tbat Parson McKay bad told bim, wbicb is hearsay upon hearsay. Tbe cases we bave generally bad are those where a living witness testified to wbat a deceased person bad declared as to boundaries. Tbe judge erred in admitting these notes. Tbey were material, and their admission prejudicial, because tbey were used for tbe purpose of locating tbe boundaries, and were allowed, by tbe court, to bave tbe effect of proof as to them, and, if competent, tbey would be strong proof of tbe lines and corners.

Tbe third question, as to tbe estoppel of tbe defendant to deny tbe plaintiffs title, because of tbe tenancy of bis predecessor, E. G. Yar-borough, requires little discussion as to tbe facts. Tbey must be settled by tbe jury. We need only to state tbe general principles of law governing such cases, and tbe applicability of tbe estoppel to a subtenant. It is well settled doctrine, says tbe Court, in Davis v. Davis, 83 N. C., 71, tbat one who, as tenant, gains possession of tbe land of another cannot resist an action for its recovery, brought after tbe termination of tbe lease, by showing a superior title in another or in bimself, acquired before or after tbe contract. The obligation to surrender becomes absolute and indispensable. Honesty forbids, says Ruffin, C. J., that be should obtain possession with tbat view, or, after getting it, thus use it. Smart v. Smith, 13 N. C., 258. Neither tbe tenant nor any one claiming under bim, remarks Daniel, J., can controvert tbe landlord’s title. He cannot put another person in possession, but must deliver up tbe premises to bis own landlord. Callendar v. Sherman, 27 N. C., 711. If be entered as tenant, or, after entry, bad become- such,- is tbe language of Rodman, J., be was estopped from asserting bis title until be bad restored tbe possession to tbe plaintiff. Heyer v. Beatty, 76 N. C., 28. *340Even a homestead right cannot be asserted in opposition to the recovery. Abbott v. Cromartie, 72 N. C., 292. The- rule does not preclude the tenant from showing an equitable title in himself or such circumstances as under our former system would call for the interposition of a court of equity for his relief, and which relief may not be obtained in the action, as is held in Turner v. Lowe, 66 N. C., 413. Yet the force of the general proposition remains unimpaired, that where the simple relation of lessor and lessee exists without other complications, the latter cannot contest the title of the former. Forsythe v. Bullock, 74 N. C., 135. The obligation to restore a possession thus obtained, before an inquiry into the title is permitted, although springing from the contract, rests upon the foundation of good faith and honest dealings among men. Lawrence v. Eller, 169 N. C., 211; LeRoy v. Steamboat Co., 165 N. C., 109. This principle of estoppel is fully considered, in these two cases, and in Lawrence v. Eller, supra, this Court said that the general rule, however, as stated, while it varies at times in its application, has been everywhere recognized as sound, and has always been very rigidly enforced in this jurisdiction, citing in support of it the following authorities: Campbell v. Everhardt, 139 N. C., 502-514; Pool v. Lamb, 128 N. C., 1; Springs v. Schenck, 99 N. C., 552; Davis v. Davis, 83 N. C., 71; Farmer v. Pickens, 83 N. C., 550; Wilson v. James, 79 N. C., 349; Abbott & Foster v. Cromartie, 72 N. C., 292; Callender v. Sherman, 27 N. C., 711; Town v. Butterfield, 97 Mass., 105; Brown v. Keller, 32 Ill., 157; Davis v. Williams, 130 Ala., 530; Rodgers v. Boynton, 57 Ala., 501; Ward v. Ryan, J. R., vol. 10, 76-77, p. 17; Peyton v. Stith, 5 Peters, 485; 2 McAdam Landlord and Tenant, sec. 421; 18 A. and E. (2 ed.), p. 414; 24 Cyc., 946.

The Court held in Springs v. Schenck, supra: “A tenant cannot be heard to deny the title of his landlord, nor can he rid himself of this relation without a complete surrender of the possession of the land.” It was held in Towne’s case, supra: “A tenant at will is estopped from denying his landlord’s title without surrendering of the leased premises or eviction by title paramount or its equivalent.” The Court said in Brown v. Keller: “That a tenant must surrender the premises, before asserting rights adverse to his landlord, which he acquired after renting the premises.” And in Davis v. Williams, supra, it was held as follows :

> “1. A tenant is estopped to dispute the title of his landlord, unless his landlord’s title has expired or been extinguished, either by operation of law or his own act, after the creation of the tenancy (p. 58).

> “2. It is only where there is a change in the condition of the landlord’s title for the worse, after a tenant enters into his contract, in the absence of fraud or mistake of fact, that he is permitted to show the change in the condition of the title (p. 58).

> *341“3. A tenant must first surrender tbe premises to bis landlord before assuming an attitude of hostility to tbe title or claim of title of tbe latter (p. 58).

> “4. An estoppel will be enforced in a court of equity as well as in a court-of law (p. 59).” - '

We see from tbis review of tbe subject, and tbe long line of cases sustaining our conception of tbe law, tbat there can no longer be any dispute as to tbe nature of tbis kind of estoppel, or as to its effect. It may also be considered as settled tbat any one to whom tbe tenant has assigned, and who has entered under him, becomes subject to tbe estoppel as much so as tbe tenant himself, and tbe authorities already cited are equally clear and explicit as to tbis proposition. Whether tbe case is brought under tbe influence of tbis principle depends, of course, upon tbe facts as found from tbe evidence." We will not refer to tbe facts, or comment upon them, as we cannot well anticipate what they will be at tbe next trial, when ascertained by tbe jury. Tbe question of adverse possession is also postponed until tbe other matters are decided, as it depends upon them.

We order a new trial because of tbe error in regard to tbe notes of tbe surveyor, and we exercise our discretion by extending it to both tracts of land.'

New trial.